AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §31-15C-1, §31-15C-2,
§31-15C-3, §31-15C-4, §31-15C-5, §31-15C-6, §31-15C-7, §31-
15C-8, §31-15C-9, §31-15C-10, §31-15C-11, §31-15C-12, §31-15C-
13 and §31-15-14, all relating to the deployment of broadband
to the remaining unserved areas of the state; setting forth
legislative findings and purpose; providing definitions;
establishing the Broadband Deployment Council; establishing
procedures for the council, and providing for administrative
support; prescribing the powers, duties and responsibilities
of the council generally; creating the Broadband Development
Fund; categorizing areas of the state according to broadband
access; authorizing the retention of an outside expert
consultant or consultants to assist in categorization and
other functions; providing for the stimulation of demand
through public outreach and education; providing funding guidelines; granting emergency rulemaking authority;
establishing project requirements for funding assistance;
describing the procedures for submitting applications and
reviewing applications; requiring public notice; requiring the
submission of written reports by certain state agencies or
officers; placing limits on liability for membership or
participation in the council; protecting confidentiality of
trade secrets and proprietary business information; creating
the misdemeanor offense of making any unauthorized disclosure
of confidential information and establishing the penalties
therefor; and providing for the expiration of the council.

Be it enacted by the Legislature of West Virginia:That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §31-15C-1, §31-15C-2,
§31-15C-3, §31-15C-4, §31-15C-5, §31-15C-6, §31-15C-7, §31-15C-8,
§31-15C-9, §31-15C-10, §31-15C-11, §31-15C-12, §31-15C-13 and §31-
15C-14, all to read as follows:ARTICLE 15C. Broadband Deployment.
§31-15C-1. Legislative findings and purpose.

The Legislature finds as follows:

(1) That it is a primary goal of the Governor, the Legislature
and the citizens of this state, by the year two thousand ten, to
make every municipality, community, and rural area in this state,
border to border, accessible to internet communications through the expansion, extension and general availability of broadband services
and technology.
(2) That although market-driven deployment has extended
broadband access to most of West Virginia's cities, towns, and
other concentrated population areas, some areas of the state,
mostly rural, remain unserved.
(3) That based upon the same network principles that providers
of telephony services have faced since the inception of the
telecommunications industry, rising fixed costs and technological
limitations prohibit broadband networks from being extended into
rural areas where the level of demand in sparsely populated areas
may not justify the required costs of construction.
(4) That the unique topography and demography of this state
that hinders the provision of broadband access to rural areas of
the state specifically disadvantages the elderly and low-income
households that are the least likely to own computers or subscribe
to internet service. In light of these topographical and
demographic challenges, any attempt to fill the gaps in West
Virginia's broadband availability must be organized according to
the levels of demand in the various unserved areas to which service
is sought to be extended.
(5) That, in particular, fair and equitable access to twenty-
first century technology that will maximize the functionality of
educational resources and educational facilities that are conducive to enabling our children to be exposed to and to receive the best
of future teaching and learning is absolutely essential to this
state. A quality educational system of the twenty-first century
should have access to the best technology tools and processes.
Administrators should have, among other things, the electronic
resources to monitor student performance, to manage data, and to
communicate effectively. In the classroom, every teacher in every
school should be provided with online access to educational
technology resources and the ability to deliver content standard
and objectives to the students of West Virginia. Schools of the
twenty-first century require facilities that accommodate changing
technologies and twenty-first century instructional processes.
(6) Accordingly, it is the purpose of the Legislature to
provide for the development of plans, processes and procedures to
be employed and dedicated to extending broadband access to West
Virginians, and to their families, by stimulating demand for those
services and for encouraging and facilitating the construction of
the necessary infrastructure to meet their needs and demands.
(7) In implementing this initiative, progress by market forces
and industry is to be respected, and the Legislature intends that
governmental assistance and funding is to be used only in those
areas without broadband service and not to duplicate or displace
broadband service in areas already served or where industry
feasibly can be expected to offer services in the reasonably foreseeable future.§31-15C-2. Definitions.
(a) For the purposes of this article,
(1) "Broadband" or "broadband service" means any service
providing advanced telecommunications capability with either a
downstream data rate or upstream data rate of at least 200 kilobits
per second, that does not require the end-user to dial up a
connection that has the capacity to always be on, and for which the
transmission speeds are based on regular available bandwidth rates,
not sporadic or burstable rates, with a minimum downstream-to-
upstream data ratio of 10:1 for services with a downstream data
rate of up to five megabits per second, and with a minimum upstream
data rate of 500 kilobits per second for services with a downstream
data rate of five megabits per second or greater.
(2) "Broadband deployment project" means either (A) a project
to provide broadband services to a type 2 and/or type 3 unserved
area, as defined in section six of this article; or (B) a project
to undertake activities to promote demand for broadband services
and broadband applications.
(3) "Downstream data rate" means the transmission speed from
the service provider source to the end-user.
(4) "Upstream data rate" means the transmission speed from the
end-user to the service provider source.
(5) "Unserved area" means a community that has no access to broadband service.
(b) The definition of the term "broadband," the designation of
areas that are "unserved", and the level of service required to
qualify for funding of state programs and projects, are based on
the Federal Communications Commission's current definition of
broadband, which is stated in terms of the number of Kilobits
(Kbps) per second, either upstream or downstream. It is the
intention of the Legislature that the definition of broadband in
this article and the level of service requirements for state
funding be promptly updated by future Legislatures to conform with
any revisions enacted by Congress or any rule or regulation
promulgated by the Federal Communications Commission or other
federal agencies involved with deploying and enhancing broadband
services.

§31-15C-3. Broadband Deployment Council established; members of
council; administrative support.

(a) The Broadband Deployment Council is hereby established.
The council is a governmental instrumentality of the state. The
exercise by the council of the powers conferred by this article and
the carrying out of its purpose and duties shall be considered and
held to be, and are hereby determined to be, essential governmental
functions and for a public purpose. The council is created under
the Department of Commerce for administrative, personnel and
technical support services only.
(b) The council shall consist of eleven voting members,
designated as follows:
(1) The Governor or his or her designee;
(2) The Secretary of Commerce or his or her designee;
(3) The Secretary of Administration or his or her designee;
(4) The Director of Homeland Security and Emergency Management
or his or her designee; and
(5) Seven public members that serve at the will and pleasure
of the Governor and are appointed by the Governor with the advice
and consent of the Senate, as follows:
(i) One member representing employees of communications and
cable providers, who shall be a member or representative of a union
representing communications workers;
(ii) One member representing telecommunications providers who
provide broadband services in this state;
(iii) One member representing cable operators who provide
broadband services in this state;
(iv) One member representing broadband equipment or device
manufacturers;
(v) One member representing higher education or secondary
education; and
(vi) Two members representing the general public who are
residents of the state: Provided, That one member represent rural
communities: Provided, however, That both members may not reside in the same congressional district.
(6) In addition to the eleven voting members of the council,
the President of the Senate shall name two senators from the West
Virginia Senate and the Speaker of the House shall name two
delegates from the West Virginia House of Delegates, each to serve
in the capacity of an ex officio, non-voting advisory member of the
council.
(c) The Secretary of Commerce or his or her designee shall
chair the council and appoint one of the other council members to
serve as vice chair. In the absence of the Secretary of Commerce or
his or her designee, the vice chair shall serve as chair. The
council shall appoint a secretary-treasurer who need not be a
member of the council and who, among other tasks or functions
designated by the council, shall keep records of its proceedings.
(d) The council may appoint committees or subcommittees to
investigate and make recommendations to the full council. Members
of these committees or subcommittees need not be members of the
council.
(e) Six voting members of the council shall constitute a
quorum and the affirmative vote of at least the majority of those
members present shall be necessary for any action taken by vote of
the council.
(f) The council is part-time. Public members appointed by the
Governor may pursue and engage in another business or occupation or gainful employment. Any person employed by, owning an interest in,
or otherwise associated with a broadband deployment project,
project sponsor or project participant may serve as a council
member and shall not be disqualified from serving as a council
member because of a conflict of interest prohibited under section
five, article two, chapter six-b of this code and shall not be
subject to prosecution for violation of said section when the
violation is created solely as a result of his or her relationship
with the broadband deployment project, project sponsor or project
participant: Provided, That the member recuses himself or herself
from board participation regarding the conflicting issue in the
manner set forth in legislative rules promulgated by the West
Virginia Ethics Commission.
(g) No member of the council who serves by virtue of his or
her office shall receive any compensation or reimbursement of
expenses for serving as a member. The public members and members of
any committees or subcommittees are entitled to be reimbursed for
actual and necessary expenses incurred for each day or portion
thereof engaged in the discharge of his or her official duties in
a manner consistent with the guidelines of the Travel Management
Office of the Department of Administration.

§31-15C-4. Powers and duties of the council generally.

(a) In addition to the powers set forth elsewhere in this
article, the council is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate the
purpose and intent of this article. The council shall have the
power and capacity to:
(1) Provide consultation services to project sponsors in
connection with the planning, acquisition, improvement,
construction or development of any broadband deployment project;
(2) To make and execute contracts, commitments and other
agreements necessary or convenient for the exercise of its powers,
including but not limited to the hiring of consultants to assist in
the mapping of the state, categorization of areas within the state,
and evaluation of project applications: Provided, That the
provisions of article three, chapter five-a of this code do not
apply to the agreements and contracts executed under the provisions
of this article;
(3) Acquire by gift or purchase, hold or dispose of real
property and personal property in the exercise of its powers and
performance of its duties as set forth in this article;
(4) Receive and dispense funds appropriated for its use by the
Legislature or other funding sources or solicit, apply for and
receive any funds, property or services from any person,
governmental agency or organization to carry out its statutory
duties; and
(5) Perform any and all other activities in furtherance of its
purpose.
(b) The council shall exercise its powers and authority to
bring broadband service to unserved areas. The council may not
duplicate or displace broadband service in areas already served or
where private industry feasibly can be expected to offer services
in the reasonably foreseeable future.

§31-15C-5. Creation of the Broadband Deployment Fund.

All moneys collected by the council, which may, in addition to
appropriations, include gifts, bequests or donations, shall be
deposited in a special revenue account in the State Treasury known
as the Broadband Deployment Fund. The fund shall be administered by
and under the control of the council. Expenditures from the fund
shall be for the purposes set forth in this article and are not
authorized from collections but are to be made only in accordance
with appropriation by the Legislature and in accordance with the
provisions of article two, chapter eleven-b of this code: Provided,
That for the fiscal year ending the thirtieth day of June, two
thousand nine, expenditures are authorized from collections rather
than pursuant to appropriations by the Legislature.

§31-15C-6. Categorization of areas within state for broadband
deployment purposes.

Based on its analysis of mapping, broadband demand, and other
relevant data, the council shall designate unserved areas of the
state as being one of three distinct types. These types are as
follows:
(1) Type 1 unserved area: an area in which broadband may be
deployed by service providers in an economically feasible manner;
2) Type 2 unserved area: an unserved area in which broadband
may be deployed by broadband service providers and other entities
in an economically feasible manner, provided some form of public
moneys is made available; and
(3) Type 3 unserved area: an unserved area in which, at
present, cable or wireline broadband cannot be deployed in an
economically feasible manner and an intermodal approach employing
other technologies, such as satellite and wireless, is required to
provide that area with high-speed internet access.§31-15C-7. Retention of outside expert consultant.
In order to assist the council with the highly technical task
of categorizing the areas of the state and evaluating and
prioritizing projects, the council may retain an outside expert
consultant or consultants qualified to map the state on the basis
of broadband availability, to evaluate, categorize and prioritize
projects, to assist in public outreach and education in order to
stimulate demand, to advise the council on the granting or denying
of funding to projects, and to provide other support and assistance
as necessary to accomplish the purposes of this article. The
provisions of article three, chapter five-a of this code, shall not
apply to the retention of an outside expert consultant pursuant to
this section; Provided, that the council shall select the expert or experts by a competitive selection process.

§31-15C-8. Stimulation of demand through public outreach and
education.

In order to implement and carry out the intent of this
article, the council may take such actions as it deems necessary or
advisable in order to stimulate demand through public outreach and
education in unserved areas. The council shall consider the views,
if offered, of affected members of the public, including private
industry.

§31-15C-9. Development of guidelines and application for funding
assistance; emergency rule-making authority.

(a) In order to implement and carry out the intent of this
article in type 2 and type 3 unserved areas, the council shall
promulgate emergency rules pursuant to the provisions of section
fifteen, article three, chapter twenty-nine-a of this code to
develop comprehensive, uniform guidelines for use by the council in
evaluating any request by a project sponsor for funding assistance
to plan, acquire, construct, improve or otherwise develop a
broadband deployment project in a type 2 or type 3 unserved area.
The guidelines shall include the following factors: (1) The cost-
effectiveness of the project; (2) the economic development benefits
of the project; (3) the availability of alternative sources of
funding that could help finance the project, including, but not
limited to, private grants or federal funding and the efforts undertaken to obtain such funding; (4) if the project requires the
construction of a network, the applicant's ability to operate and
maintain such network; (5) the degree to which the project advances
statewide broadband access and other state broadband planning
goals; (6) the proposed technologies, bandwidths, upstream data
rates and downstream data rates; (7) the estimated date the project
would commence and be completed; (8) how the proposed project
compares to alternative proposals for the same unserved area with
regard to the number of people served, the amount of financial
assistance sought, and the long-term viability of the proposed
project; and (9) any other consideration the council deems
pertinent.
b) Under no circumstances may the council's guidelines allow
for the approval of any project for broadband service that does not
include a minimum downstream transmission rate of 600 kilobits per
second (Kbps) and a minimum downstream-to-upstream ratio of 8.5:1
for services with a downstream rate of up to five megabits per
second (Mbps). In those cases where a project's broadband service's
downstream rate is five Mbps or greater, the council's guidelines
must require a minimum upstream data rate of 588 Kbps and allow
information applications and market demands to dictate acceptable
downstream-to-upstream data ratios.
c) The council shall create an application form that shall be
used by all project sponsors requesting funding assistance from the council to plan, acquire, construct, improve or otherwise develop
broadband deployment projects in type 2 or type 3 unserved areas.
The application form shall contain all information required by all
state agencies that will be required to issue permits and
certificates regarding the project. The application shall require
the project sponsor to set forth the proposed location of the
project; the type(s) of unserved area(s) the project proposes to
address, the estimated total cost of the project; the amount of
funding assistance required and the specific uses of the funding;
other sources of funding available or potentially available for the
project; information demonstrating the need for the project; that
the proposed funding of the project is the most economically
feasible and viable alternative to completing the project; and such
other information as the council considers necessary.

(a) Once the council has categorized unserved areas pursuant
to section six of this article, project sponsors may submit
applications for funding assistance for projects in those unserved
areas. Upon receiving its first completed application for a
categorized unserved area, the council shall post notice of such
application with the Secretary of State for sixty days so as to
allow for competing applications to be submitted to the council.
Within thirty days of the close of the aforementioned sixty-day notice period, the council shall review all applications timely
received during the sixty-day period and either (i) approve funding
for one or more projects after determining that the funding would
constitute an appropriate investment of public funds, or (ii) if
the council determines that the application does not contain all of
the required information or otherwise is incomplete, or that a
proposed project is not eligible for funding assistance, or that
the proposed project is otherwise not an appropriate or prudent
investment of state funds, the council shall deny the project
funding request. Prior to approving or denying any funding request,
the council may seek the advice of any expert consultant retained
pursuant to section seven of this article, but the council is not
bound by that advice. The council shall also consider the views, if
offered, of affected members of the public, including private
industry.
(b) To apply for or receive any funding assistance for a
broadband deployment project from the council pursuant to
subsection (a) of this section, the project sponsor seeking the
funding assistance shall submit a completed application to the
council on the form prepared for such purpose by the council
pursuant to section nine of this article.
(c) In reviewing each application, the council may use the
engineering, financial and technical expertise of outside
consultants in addition to the respective staffs of the government agencies and private-sector entities represented on the council or
other government agencies.
(d) Notwithstanding any provision of article fifteen-a,
chapter thirty-one or any other provision of this code, broadband
deployment project proposals submitted to the council for its
consideration pursuant to this article and the council's decisions
with regard to such projects shall not be subject to review by the
West Virginia Infrastructure and Jobs Development Council.§31-15C-11.Required reporting by state entities.
(a) The secretary of administration shall submit a written
report to the council by the thirty-first day of October of each
year describing in detail the existing broadband infrastructure
owned, leased, used, or operated by the state; broadband
infrastructure purchased by the state; the demand for the
infrastructure in the state; and whether or not that infrastructure
is available to the public. If significant changes to any of the
information submitted to the council occur, the secretary of
administration shall submit a written update the council within
sixty days of the change or in the next report, whichever date is
sooner.
(b) The secretary of administration shall submit a written
report to the council by the thirty-first day of October of each
year describing in detail the state portal, any state services or
programs that are available to the public on the state portal; the amount of usage of the portal; and efforts to create demand for the
portal. If significant changes to any of the information submitted
to the council occur, the secretary of administration shall submit
a written update the council within sixty days of the change or in
the next report, whichever date is sooner.
(c) The chancellor of the higher education policy commission
shall submit a written report to the council by the thirty-first
day of October of each year describing in detail the existing
broadband infrastructure owned, leased, used, operated, or
purchased by all public baccalaureate and graduate institutions in
the state; all programs or initiatives designed to increase the
usage of broadband and broadband based educational applications in
the public baccalaureate and graduate institutions; and all
training provided to instructors in the use of broadband and
broadband based educational applications, If significant changes to
any of the information submitted to the council occur, the
chancellor of the higher education policy commission shall submit
a written update to the council within sixty days of the change or
in the next report, whichever date is sooner.
(d) The chancellor of the West Virginia Council for Community
and Technical College Education shall submit a written report to
the council by the thirty-first day of October of each year
describing in detail the existing broadband infrastructure owned,
leased, used, operated, or purchased by all public baccalaureate and graduate institutions in the state; all programs or initiatives
designed to increase the usage of broadband and broadband based
educational applications in the public baccalaureate and graduate
institutions; and all training provided to instructors in the use
of broadband and broadband based educational applications, If
significant changes to any of the information submitted to the
council occur, the chancellor of the West Virginia council for
community and technical college education shall submit a written
update the council within sixty days of the change or in the next
report, whichever date is sooner.
(e) The state superintendent of schools shall submit a written
report to the council by the thirty-first day of October of each
year describing in detail the existing broadband infrastructure
owned, leased, used, operated, or purchased by all state schools;
all programs or initiatives designed to increase the usage of
broadband and broadband based educational applications in the
schools and in Pre-K and early childhood education programs; all
training provided to teachers in the use of broadband and broadband
based educational applications; the availability of an access to
broadband in homes and families with children aged four years to
eight years; estimates of the number of families with children aged
four years to eight years who are using broadband in the homes;
estimates of the ownership of computers in families with children
aged four years to eight years; and any unmet demand for broadband infrastructure in state schools. If significant changes to any of
the information submitted to the council occur, the state
superintendent of schools shall submit a written update to the
council within sixty days of the change or in the next report,
whichever date is sooner.
(f) The chair of the West Virginia healthcare authority shall
submit a written report to the council by The thirty-first day of
October of each year describing in detail the existing broadband
infrastructure owned, leased, used operated, or purchased by all
hospitals, medical facilities, clinics, or healthcare providers;
all programs, initiatives, or applications utilizing broadband that
are promoted by hospitals, medical facilities, clinics, or
healthcare providers; and any unmet demand for broadband by
hospitals, medical facilities, clinics, or healthcare providers.§31-15C-12. Limitation of liability.
No person is subject to antitrust or unfair competition
liability based on membership or participation in the council,
which provides an essential governmental function and enjoys state
action immunity.

§31-15C-13. Protection of proprietary business information.

(a) Broadband deployment information provided to the council
or its consultants and other agents, including but not limited to
physical plant locations, subscriber levels, and market penetration
data, constitutes proprietary business information and, along with any other information that constitutes trade secrets, shall be
exempt from disclosure under the provisions of chapter twenty-nine-
b of this code: Provided, That the information is identified as
confidential information when submitted to the council.
(b) Trade secrets or proprietary business information obtained
by the council from broadband providers and other persons or
entities shall be secured and safeguarded by the state. Such
information or data shall not be disclosed to the public or to any
firm, individual or agency other than officials or authorized
employees of the state. Any person who makes any unauthorized
disclosure of such confidential information or data is guilty of a
misdemeanor and, upon conviction thereof, may be fined not more
than five thousand dollars or confined in a correctional facility
for not more than one year, or both.
(c) The official charged with securing and safeguarding trade
secrets and proprietary data for the council is the Secretary of
Administration, who is authorized to establish and administer
appropriate security measures. The council chair shall designate
two additional persons to share the responsibility of securing
trade secrets or proprietary information. No person will be allowed
access to trade secrets or proprietary information without written
approval of a minimum of two of the three authorized persons
specified above. §31-15C-14. Expiration of council.
The council shall continue to exist until the thirty-first day
of December, two thousand eleven, unless sooner terminated,
continued or reestablished pursuant to an Act of the Legislature.